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The Importance of Context

December 11, 2013,

To be actionable as libel, a statement must reasonably imply false and defamatory facts when read in context. Context is important because the setting of the speech makes its nature apparent and helps determine how its intended audience would have interpreted the statement. In some cases, a literally false statement will not be actionable because contextual factors demonstrate that the true meaning of the statement is something other than what the words alone might suggest. In other words, the statement that a plaintiff must prove false to prevail in a defamation case is not necessarily the literal phrase published but rather what a reasonable reader would have understood the author to have said. In Farah v. Esquire Magazine, the United States Court of Appeals for the District of Columbia Circuit discussed the importance of these principles in a case involving political satire.

Jerome Corsi is the popular author of several New York Times bestsellers and the book "Where's the Birth Certificate? The Case that Barack Obama is Not Eligible to be President" published by WND Books. Joseph Farah is the Editor and CEO of WND's parent company, WorldNetDaily.com, a competitor of Esquire Magazine. On the day after "Where's the Birth Certificate" was released, Esquire published an online article on "The Politics Blog" entitled "BREAKING: Jerome Corsi's Birther Book Pulled from Shelves!" A copy of the Drudge Siren, a symbol of sensationalistic news, appeared above an image of the book's cover. The article claimed that Farah had announced plans to recall and "pulp" the entire first run of the book and to refund purchaser's money because three weeks earlier, Obama had produced his long form birth certificate indicating he was born in Hawaii. Later, Esquire published an update clarifying that the article was satirical, but the writer of the article referred to Corsi as an "execrable piece of shit" in an interview published on another online publication, The Daily Caller.

Farah and Corsi sued for defamation and other torts. According to the complaint, after the article was published, Farah received numerous requests for confirmation of the story and comment, and consumers began requesting refunds. The plaintiffs also claimed that they were attacked by book supporters and that book stores pulled the book from their shelves or refused to sell it. Farah and Corsi contended that Esquire only published the update after Farah indicated that he was exploring legal options and that the update was likewise false and defamatory. The district court granted Esquire's motions to dismiss under both Federal Rule of Civil Procedure 12(b)(6) and D.C.'s Anti-SLAPP Act, D.C. Code § 16-5501 et seq.

On a de novo review, the Court of Appeals upheld the district court's dismissal of the complaint for failure to state a claim, declining to address the Anti-SLAPP issue. The court held that the article was protected political satire and that the update and writer's comments were non-actionable statements of opinion. The court noted that the United States Supreme Court has repeatedly extended First Amendment protection to statements that do not reasonably state or imply defamatory falsehoods when read in context. Satire is a broad and complex genre that is sometimes funny and other times cruel and mocking or even absurd. The court gave the example of Jonathan Swift's famous jonathanswift.jpgsatire "A Modest Proposal" in which he suggested killing and eating Irish children to solve the problem of Irish poverty. Although satirical speech is literally false, it enjoys First Amendment protection.

To qualify as defamatory, a plaintiff must prove not that the literal published phrase is false but that what a reasonable reader would have understood the author to have said is untrue. Satire is not actionable if it cannot reasonably be interpreted as stating actual facts. Farah and Corsi did not disagree that satire is protected, but they asserted that this attempt at satire was actionable because reasonable readers would take the fictitious blog post literally.

The court held that to determine how a reasonable reader would have understood a particular satirical statement, courts should assess the hypothetical reader's "well-considered view," formed after time for reflection, rather than her "immediate yet transitory reaction." Thus, even if some actual readers don't "get" the satire and mistake it for actual news, satire that, taken in context, would be understood (upon reflection) as satire by a reasonable reader, enjoys First Amendment protection and will not support a defamation action.

The court also noted that an article's "indicia of satire" can be subtle. In this case, for example, the body of the article "did not employ the sort of imitation and exaggerated mimicry that are typical of parody." The court explained that satire can incorporate a wide variety of literary forms and devices to achieve its intended effect, such as "ridicule, derision, burlesque, irony, parody, or caricature." The fact that an article's satirical nature may not be immediately obvious does not remove it from First Amendment protection.

Considering this particular article in context, the court held that a reasonable reader could not understand it to convey real news about the plaintiffs. The intended audience consisted of readers of "The Politics Blog" who would have been familiar with Esquire's history of publishing satire. They were also politically informed readers who would have been familiar with WorldNetDaily and its positions on the birther controversy.

Reasonable readers would have recognized the signs of satire in the article such as the substance of the story itself, i.e., that Farah, a leader of the movement to challenge Obama's eligibility to serve, had suddenly and without warning decided to recall and "pulp" Corsi's book. The humorous and outlandish elements in the article also suggest satire. For example, the article claims Corsi wrote a book entitled "Capricorn One: NASA, JFK, and the Great 'Moon Landing' Cover-Up." Additionally, the article contained quotes using foul language which would not likely appear in a serious news story. Stylistic details such as the exclamatory headline and the use of the Drudge Siren symbol similarly alerted readers that the article was not to be taken seriously.

The court held that because a reasonable reader could not understand the blog post to convey actual facts about the plaintiffs, it was not actionable as defamation. Rather, almost everything about the article indicated that it was political speech aimed at criticizing the plaintiffs' public position on Obama's eligibility to hold office. The article was protected by the First Amendment and the district court properly dismissed the defamation claim.

Defamation Claim Dismissed for Failure to Plead Exact Words

October 21, 2013,

To survive demurrer, claims for defamation must set forth the exact language of the alleged statements claimed to be defamatory. Some Virginia judges (like Judge Charles E. Poston of Norfolk) refer to this requirement as a "heightened pleading" standard, but care should be taken not to confuse this terminology with the heightened pleading standard for fraud claims, which generally requires that fraud allegations identify the time, place, content, and maker of each alleged fraudulent statement. No such particularity is required for defamation claims in Virginia.

Judge Poston recently sustained a demurrer to a defamation claim that failed to allege the specific words spoken. In Owens v. DRS Automotive Fantomworks, Inc., Mr. and Mrs. Owens tasked DRS and Daniel Short with converting their 1960 Thunderbird into a 1960 Thunderbird Police Interceptor. The Owens paid DRS two deposits of $15,000 each which DRS used for restorations, repair work and part expenditures including the purchase of a Police Interceptor from Alexander Thiess. When the defendants refused to give the Owens documentation of the expenditures, the Owens asked DRS to return the vehicle. DRS demanded that the Owens pay an additional $3,313. The Owens refused and sued DRS. DRS filed a counterclaim alleging that the Owens defamed it in statements made to Mr. Theiss and his superiors. The Owens demurred to the defamation counterclaim, arguing that it failed to allege sufficient facts.

The allegedly defamatory statements were that the Owens described Mr. Short's business practices as illegal, criminal, shady and not on the up-and-up; asserted that Mr. Short and DRS were under criminal and civil investigation and that they likely stole the Police Interceptor; claimed Mr. Short was a "liar" regarding the history of Tbird.jpgthe Police Interceptor, and that he deceived and overcharged the Owens for the Interceptor. The counterclaim, however, contained only two verbatim quotes: that the Owens called Mr. Short a "liar" and that DRS sold vehicles with "open-titles." The court found the vague allegations insufficient.

The court held that the counterclaim failed to meet the "heightened pleading" requirement for a defamation claim because (with two limited exceptions) DRS did not allege the exact words or phrases used. Words of an equivalent or similar nature, summaries and generalizations are not adequate. The heightened pleading requirement, the court held, is to ensure that parties do not frame statements to favor their claims, resulting in bias to the other party. Additionally, the two single-word quotations are not enough. The quotes lacked context and were so vague as to be meaningless.

The court also found that even if the alleged statements could be considered sufficiently specific, they constituted non-actionable opinion. A factual statement can be objectively characterized as true or false whereas an opinion is relative in nature and is dependent on the speaker's viewpoint. Here, words such as "shady" and "overcharged" depend on the Owens' viewpoint and, if those words were used at all, would be statements of opinion. The court found that the allegation that Mr. Short and DRS were "under criminal and civil investigation" is a generalization that would require the speaker to define those terms in order to state an actual fact. The noncommittal statement that the car was likely stolen was clearly meant as an opinion, and calling Mr. Short a "liar," without alleging any context, was too vague to be considered an assertion of fact. Therefore, the court sustained the demurrer.

Mann's Defamation Suit Survives Anti-SLAPP Motion

July 29, 2013,

Well-known climate scientist Michael Mann made good on his threat to sue the National Review and columnist Mark Steyn for defamation based on statements made online questioning Mann's global warming research. In response, the defendants filed a special motion to dismiss under D.C.'s anti-SLAPP statute, arguing that the online statements were made in furtherance of the right of advocacy on an issue of public interest. The court found that the anti-SLAPP statute did apply but nevertheless denied the motion.

Mann is a professor of meteorology and the Director of the Early System Science Center at Penn State. He is well known for his research on global warming and has published papers and books on the subject. The University of East Anglia's Climate Research Unit (CRU) exchanged emails with Mann which were later misappropriated. In one email, a CRU scientist referred to Mann's "nature trick" of adding in real temperatures for the last twenty years and from 1961 to "hide the decline." Upon discovery of the emails, the University of East Anglia investigated the matter and concluded that the honesty and rigor of the CRU scientists was not in doubt but that the email referencing Mann's "nature trick" was misleading.

In 2010, Penn State initiated an investigation of Mann and the CRU emails. The investigatory committee was comprised entirely of Penn State faculty members. Based on an interview with Mann, the committee cleared Mann of three of four charges against him. The last charge involved an allegation that Mann's research might deviate Mann.jpgfrom accepted norms. The committee interviewed an MIT professor who was critical of Mann's work and later expressed dismay with the scope of the investigation and the committee's analysis of the CRU emails.

At the same time, in response to pressure from the National Review, Steyn and others, the EPA investigated Mann and found no evidence of scientific misconduct. The National Science Foundation also investigated Mann's work and found that Penn State had not adequately reviewed the allegations and failed to interview critics of Mann's work

Two years later, Penn State was in headlines due to the Jerry Sandusky scandal. FBI Director Louis Freeh concluded that the university had failed to properly investigate allegations of misconduct when they arose and suggested that it should undertake a thorough and honest review of its culture which seemed to value the avoidance of bad publicity and its consequences above all else.

The National Review seized on the Sandusky scandal and published Steyn's article "Football and Hockey" on its website in a section called "The Corner." The piece contained an excerpt from and a link to a post by Rand Simberg on OpenMarket.org entitled "The Other Scandal in Unhappy Valley" which compared the Sandusky scandal and the university's failure to handle the matter properly with its investigation into Mann's work. Steyn agreed that Simberg had a point but admitted he might not have "extended the metaphor all the way into the locker-room showers" with quite the zeal Simberg did. Steyn also stated that Mann was the man behind the "fraudulent climate-change hockey stick graph, the very ringmaster of the tree-ring circus," and he concluded by noting the similarities between Penn State's investigation of Sandusky and Mann and questioning its handling of both matters.

Mann demanded a retraction and apology for the accusations of academic fraud. In response, the National Review asserted that the term "fraudulent" was used to mean "intellectually bogus and wrong" rather than criminally fraudulent.

Mann sued in D.C. Superior Court, alleging libel and intentional infliction of emotional distress against the National Review, Steyn, Simberg and the owner of OpenMarket.com, Competitive Enterprise Institute. His complaint was based on the statements that (1) Mann had engaged in data manipulation and scientific misconduct and was the "poster-boy of the corrupt and disgraced climate science echo chamber," (2) Mann was the man behind the "fraudulent climate-change hockey stick graph, the very ringmaster of the tree-ring circus," and (3) Mann's work was intellectually bogus.

The National Review and Steyn moved to dismiss under both D.C.'s Anti-SLAPP Act and Federal Rule of Civil Procedure 12(b)(6). The defendants argued that their comments are protected by the First Amendment and that the Anti-SLAPP Act applies because Mann's claims stem from statements made in a public forum that discusses issues of public interest, i.e., climate change and global warming. Mann asserted that the Anti-SLAPP Act was enacted to deter large private interests from bringing meritless suits to deter common citizens from exercising their political or legal rights and was not intended to apply to cases such as this. The court found that because the defendants' comments were made with respect to climate issues which are environmental issues and issues of public interest, and were made in publications that were available to the public, the Anti-SLAPP Act applies.

The Anti-SLAPP Act provides that if a party filing a special motion to dismiss makes a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest, then the court will grant the motion unless the responding party shows that the claim is "likely to succeed on the merits." The parties disagreed on the level of proof this standard requires. The defendants asserted that "likely" poses a higher burden than "probability," which is the term used in the corresponding California statue upon which the D.C. statute is based. Mann argued that there is no difference between "likely" and probability." The court turned to Black's Law Dictionary which defines the "likelihood of success on the merits test" in the context of a preliminary injunction as requiring the litigant to show "a reasonable probability of success in the litigation." The California statute requires the plaintiff to show a "probability of prevailing on the claim by making a prima facie showing of facts that would, if proved, support a judgment in the plaintiff's favor." The court held that the standard is similar to that used on a motion for judgment as a matter of law and that Mann must present a sufficient legal basis for his claims in order to survive the anti-SLAPP motion.

The defendants argued that Mann would be unable to make a prima facie case for libel because he could not prove the actual malice required where plaintiff is a public figure. They also argued that Mann would be unable to prove the falsity of the statements because the statements were ones of opinion. Mann countered that he could demonstrate actual malice by showing that the defendants entertained serious doubts as to the truth of the statements or acted with a high degree of awareness that the statements were probably false. He argued that the statements were false and defamatory per se and that the defendants made them with knowledge of their falsity or with reckless disregard of the truth. He contended that whether he engaged in fraud is verifiable by analyzing the elements of fraud or considering the investigations conducted regarding his research.

On the issue of malice, the court found that sufficient evidence existed to show at least reckless disregard of truth or falsity, as Mann had been investigated several times, at least once due to the defendants' accusations, and his research has been found to be accurate. The court held that where the defendants consistently claim that Mann's work is inaccurate despite being proven accurate, then there is a strong probability that the defendants disregarded the falsity of their statements and did so with reckless disregard. Although the evidence was not yet sufficient to show clear and convincing evidence of actual malice, the court found sufficient evidence to necessitate further discovery on the matter.

Regarding the fact vs. opinion question, the court noted that opinions may be actionable if they imply a provably false fact or rely upon stated facts that are provably false. To determine whether a statement is actionable opinion, a court must examine the context of the statement. The court found that the statements at issue here questioned facts rather than simply inviting readers to ask questions. The court held that, given the definition of fraud and the common readers' interpretation of the words "fraud" and "fraudulent," the statements were more than brutally honest commentary. The court held that the assertions of fraud rely upon facts that are provably false in light of the fact that Mann has been investigated and his research and conclusions determined to be sound. Evidence indicated that the defendants' statements were not pure opinion but rather were statements based on provably false facts.

The defendants also argued that the statements were rhetorical hyperbole - witty and obvious exaggeration-- which is protected under the First Amendment, and that the statements criticized Mann's work and ideas rather than Mann himself and thus cannot be defamatory. The court found that, when considered in the context of all of the comments and accusations made over the years and the "constant" requests for investigations of Mann's work, the statements appear more as factual assertions.

Finally, the defendants argued that their statements were protected by D.C.'s fair comment privilege, which protects opinions based on facts that are well known to readers. To take advantage of this privilege, a defendant must show that the publication was fair and accurate and that the publication properly attributed the statement to the official source. Here, the court found that the accusations of fraud were provably false as several reputable bodies had found his work sound. Thus, the court held that the fair comment privilege did not apply.

For these reasons, the court denied the motions to dismiss and lifted the discovery stay.

Overzealous Pleading Doesn't Advance Your Cause

April 15, 2013,

Travel agent John Mathews may have a meritorious claim against a Virginia hotel for breaching a contract to provide food for a large group of tourists. It's hard to tell, though, when he clutters his complaint with counts for defamation, invasion of privacy, tortious interference, and intentional infliction of emotional distress, and fails to include a count for breach of contract. This latest complaint represents Mr. Mathews' fourth attempt to present his case to a federal court in Pennsylvania. Had he opted to file a simple breach-of-contract action in Virginia's general district court instead, he might have secured a judgment by now.

The allegations go as follows. Mr. Mathews booked a "Winter Get Away Tour" with the Westin hotel at Washington Dulles in 2012. He alleges he planned the event with the hotel sales manager and estimated there would be 150 guests with the tour. He claims he emphasized that this was only an estimate and he would furnish a final number later.

When 174 people signed up for the getaway (or rather, the "get away"), the hotel was not able to feed everyone, as the head chef apparently wasn't notified of the final number. On both Saturday and Sunday nights, some guests went without meals and an unlimited, all-you-can-eat buffet was converted to a limited, one-serving one. Mathews had advertised the tour to include two buffet dinners and two buffet breakfasts and claims he had to reimburse many guests due to the missed or reduced meals.

Mathews doesn't allege breach of contract, but alleges the hotel "Sale Manager" defamed him by calling him a "dishonorable person," which "almost incited a riot." He alleges the defendants' actions forced him to reimburse $3,000 to certain guests and caused him to suffer an additional $4,000 loss because some guests refused to pay apple-bites.jpgtheir balances owed. For the alleged defamation, he claims at least $450,000. As mentioned above, he also alleges a number of other torts.

If Mr. Mathews contends the hotel breached an agreement to provide sufficient food for 174 people, he should have included a breach of contract claim. Different policy considerations distinguish the law of torts from the law of contracts, and there are rules against trying to recover pain-and-suffering type damages when all you've suffered are disappointed economic expectations. If the case is really about false statements made by an agent of the hotel and not a contractual breach, more will be required than a vague statement about being "dishonorable."

I mentioned this is the plaintiff's fourth attempt to survive dismissal. Mathews originally filed a separate case against the hotel, alleging constitutional violations, defamation, and emotional distress. The court dismissed the constitutional claim because the defendant wasn't a state actor as required by 42 U.S.C. § 1983. The complaint hadn't properly pled the elements required to assert diversity jurisdiction so the court gave Mathews a chance to amend his complaint to include the necessary allegations.

Mathews filed an amended complaint, adding Starwood Hotels & Resorts Worldwide, Inc. as a defendant. But the complaint failed to plead the defendants' citizenship so the court dismissed it with leave to file a second amended complaint if Mathews could cure the jurisdictional defect. The court explained that, under 28 U.S.C. § 1332(c)(1), corporations are citizens "of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principle place of business."

Mathews tried again, filing a second amended complaint against Westin and Starwood with substantially the same allegations as before. He identified himself as a Pennsylvania citizen, Westin as a "US citizen incorporated in Virginia," and Starwood as a "US citizen hotel incorporated in the state of Maryland."

But the second amended complaint failed to state either defendant's principal place of business. Once again, the court dismissed the case for lack of subject matter jurisdiction. Pointing out that Mathews had been instructed how to cure the problem but hadn't done so, the court concluded that further attempts to amend would be futile. The case was dismissed without prejudice to plaintiff refiling his claims in state court.

But Mr. Mathews didn't re-file in state court. Instead, he brought this new case in federal court. If the court doesn't dismiss it on res judicata grounds, it will likely dismiss it for failure to state a valid claim.

Fabricated Quotations Actionable if Harmful to Reputation

March 1, 2013,

An essential requirement of any defamation action is that the alleged statement convey factual assertions. Pure expressions of opinion (i.e., those that neither state directly nor imply any assertion of objective fact) are protected by both the First Amendment and Section 12 of the Virginia Constitution. Whether a particular statement should be classified as fact or opinion is a threshold issue for the court to decide. Consequently, many libel and slander cases are dismissed at the outset and never reach a jury.

There's not always a bright line between the two, and sometimes courts get it wrong. Yesterday, the Virginia Supreme Court reversed the decision of a Halifax County court to dismiss a defamation action on the ground the statement constituted opinion and not fact. The statement at issue was this: "Tharpe told me that Tharpe was going to screw the Authority like he did Fort Pickett."

It's certainly tempting to treat a statement like this as opinion, because whether or not someone got "screwed" is subject to differing viewpoints. But look closely. The speaker is not making the claim that Tharpe screwed the Authority or screwed Fort Pickett. What he is saying is that Tharpe TOLD him these things. Tharpe's position in quotes.jpgthe trial court was that he never made such a statement. So the issue wasn't whether or not getting "screwed" is a matter of fact or opinion, but whether it was a factual assertion to claim that Tharpe made this particular statement. The Virginia Supreme Court held that it was "indisputably capable of being proven true or false."

The Virginia Supreme Court had not previously dealt with the issue of whether fabricated quotations might be actionable as defamation. Other courts, however, have supported the theory, and the Virginia Supreme Court found their reasoning persuasive.

The United States Supreme Court, for example, held in Masson v. New Yorker Magazine that falsely attributing a statement to another can harm that person's reputation regardless of whether the factual matters in the quoted statement are true or false. The false attribution can cause the public to infer the plaintiff has a particular attitude or character trait that can damage his reputation.

In the Masson case, a psychoanalyst was falsely quoted as stating that he was "the greatest analyst who ever lived." To determine whether the statement is actionable, it is not necessary to determine whether the psychoanalyst was, in fact, the greatest analyst who ever lived. Many would not want to associate with any analyst who would make such a bold and arrogant proclamation. Therefore, the harm to reputation lies in the false allegation that the analyst made the statement, and whether he made the statement is a factual matter capable of being proven.

The court noted in a footnote that there is no "wholesale defamation exemption" for statements of opinion because sometimes apparent expressions of opinion imply facts. While not discussed in the opinion, I think the alleged statement is particularly egregious because it attributes to Tharpe a statement that implies incriminating facts. If Tharpe had said that he had "screwed Fort Pickett," I would argue that such a statement implies that Tharpe--as a matter of fact--acted dishonestly, committed fraud, or otherwise cheated Fort Pickett in some way. A reasonable listener hearing the alleged statement might have formed these conclusions and not just understood Tharpe as expressing his personal opinion that Fort Pickett got a bad deal.

In any event, the court held it was error to sustain the demurrer and remanded the case to the trial court.

"Dirtiest Hotels" List is Rhetorical Hyperbole and Not Grounds for Defamation Action

September 11, 2012,

Kenneth M. Seaton, sole proprietor of the Grant Resort Hotel and Convention Center in Pigeon Forge, Tennessee, brought a defamation action against TripAdvisor after the hotel was identified by the travel site as the dirtiest hotel in America. The United States District Court for the Eastern District of Tennessee, however, found that TripAdvisor's list of "2011 Dirtiest Hotels" could not support a defamation claim and dismissed the case on August 22, 2012.

TripAdvisor relies solely on customer reviews to compile its "Dirtiest Hotels" list - it does not conduct an independent investigation of each hotel. Seaton claimed that TripAdvisor attempted to assure the public that its list is factual, reliable and trustworthy by including the following statements along with its list: (1) "World's Most Trusted Travel Advice"; (2) "TripAdvisor lifts the lid on America's Dirtiest Hotels"; (3) "Top 10 U.S. Crime-Scenes Revealed, According to Traveler Cleanliness Ratings"; (4) "Now, in its sixth year, and true to its promise to share the whole truth about hotels to help travelers plan their trips, TripAdvisor names and shames the nation's most hair-raising hotels"; (5) "This year, the tarnished title of America's dirtiest hotel goes to Grand Resort Hotel and Convention Center, in Pigeon Forge, Tennessee." The list quoted a TripAdvisor user: "There was dirt at least ½ inch thick in the bathtub which was filled with lots of dark hair." The list also featured a photograph of a ripped bedspread.

Defamation claims require proof of false statements or false implications. Seaton contended that by publishing its "2011 Dirtiest Hotels" list, TripAdvisor was implying that the Grand Resort Hotel and Convention Center was, in fact, the dirtiest hotel in the United States and that a reasonable person reading the list would consider this supposed fact in making their travel plans. Seaton argued that the list was not mere hyperbole because it dirtyhotels.jpgcontained actual numerical rankings with comments suggesting that the rankings were based in actual fact.

The court agreed that a reasonable person might consider the list when making hotel plans, but found that "propensity to initiate negative mental contemplation on behalf of a potential patron" is not the test for defamation. In determining whether TripAdvisor's list is defamatory, the court would not consider whether the list is compelling but rather whether a reasonable person could understand the language in question as an assertion of fact or instead merely hyperbolic opinion or rhetorical exaggeration.

The court found that neither the fact that TripAdvisor numbered its opinions one through ten nor that it supported its opinions with data converts its opinions to objective statements of fact. A reasonable person would not confuse a ranking system based on consumer reviews for an objective assertion of fact. Rather, a reasonable person would know that the list reflected the opinions of TripAdvisor's online users. Seaton did not plead any facts that would lead the court to find that TripAdvisor made a statement of fact or of opinion that it intended readers to believe was based on facts. Finally, the court found that although unverified online user reviews are a poor evaluative method, the system is not sufficiently erroneous so as to be labeled defamatory. For these reasons, the court held that TripAdvisor's "Dirtiest Hotels" list is unverifiable rhetorical hyperbole and could not form the basis of a defamation action.

Doctor's Defamation Claim Reconsidered by Judge Roush

August 13, 2012,

Judge Jane Marum Roush of the Fairfax Circuit Court has allowed Dr. Adel Kebaish to amend his complaint against Inova Fairfax Hospital to include four additional statements claimed to be defamatory. Judge Roush had previously found the alleged statements non-actionable but was persuaded by the plaintiff's attorneys to partially reconsider her earlier ruling.

Dr. Kebaish was an orthopedic and spine trauma surgeon at Inova Fairfax Hospital. Dr. Kebaish claims that Inova and several of its doctors and physician assistants defamed him and that Inova terminated him for objecting to substandard care and fraudulent billing practices. He filed a complaint against Inova, one of its administrators and ten of its doctors and physician assistants alleging causes of action for defamation per se as well as other business torts. The defendants demurred on various grounds.

The court reviewed each of the allegedly defamatory statements in the complaint and agreed with Inova that most of the statements were either statements of opinion, not actionable as defamation, or made by persons who were not named as defendants. To successfully state a claim for defamation in Virginia, a plaintiff must show that the ER.jpgdefendant published a false factual statement that harms the plaintiff or the plaintiff's reputation. Expressions of opinion are constitutionally protected and are not actionable as defamation.

The court initially sustained the demurrer to the defamation claim except as to two alleged statements: (1) that Dr. Kebaish had once operated on a patient with a "do not resuscitate" order without the family's consent; and (2) that Dr. Kebaish's privileges at Inova's emergency room had been revoked. Dr. Kebaish moved the court to reconsider its ruling as to the other statements.

Upon reconsideration, the court found that four additional allegations were statements of fact that, if proven to have been made and proven to be false, may be defamatory: (1) a doctor's statement that Dr. Kebaish turned away Medicaid patients; (2) a defendant's statement that Dr. Kebaish had caused a sciatic nerve injury to a patient treated for pelvic fracture and was hiding this fact; (3) a defendant's statement to an investigator for the Virginia Board of Medicine that Dr. Kebaish had operated on patients without taking x-rays, had caused complications, and had missed fractures on patients; and (4) a defendant's statement to potential patients that Dr. Kabaish's "hands shake."

Target of Online Griping Files Defamation Action

August 6, 2012,

Fairfax-based Direct Connect, LLC, a credit card processing company, has sued Inkthis, LLC, and its owner, Debra Sachs, for alleged defamation and tortious interference with contract. Direct Connect is upset about certain statements posted on Inkthis' Facebook wall, including one that referred to Direct Connect as "a bunch of thieves." The defendants recently removed the case from Fairfax Circuit Court to federal court in Alexandria.

The Facebook posts describe the author's frustration with certain business practices of Direct Connect, including what the author believed to be excessive charges debited from Inkthis' bank accounts. Direct Connect says the statements are false, that the defendants knew the statements were false when they made them and, by publishing descriptions of the company that included words like "inept," "horrible," and "thieves," the statements harmed Direct Connect's reputation.

Statements that are relative in nature and depend largely upon the speaker's viewpoint are generally considered expressions of opinion. Opinions cannot form the basis of a defamation action as they are protected by the First Amendment and generally cannot be interpreted as stating a provably false fact, a prerequisite for any thief.jpgdefamation claim. Thus, referring to Direct Connect as "inept" and "horrible" will likely be deemed non-actionable opinion. Referring to the company as "a bunch of thieves" presents a closer question.

Like opinions, rhetorical hyperbole cannot reasonably be interpreted as a statement asserting actual facts. In one often-cited Virginia case, the Virginia Supreme Court held that referring to a university executive as the "Director of Butt-Licking" was mere hyperbole and could not be reasonably interpreted as a factual statement.

The interesting question here is whether referring to a group as a "bunch of thieves" should be interpreted differently than referring to a specific individual as a "thief." Calling someone a thief is unquestionably defamatory, but notice the subtle change in meaning when (1) the statement is applied to a group of people, and (2) "thief" is replaced with "bunch of thieves." Is the speaker actually asserting that each and every member of Direct Connect is a thief? I expect the court will dismiss the defamation claim.

No Defamation Claim for Medical Resident's Poor Performance Evaluation

July 22, 2012,

Employment reviews often lead to libel allegations due to the fact they often contain harmful statements perceived by the employee to be false and defamatory. In most cases, however, even if the performance review contains a false statement, no defamation claim will lie because (1) statements of opinion are not actionable under Virginia law (or the United States Constitution); and (2) communications between people on a subject in which they both have an "interest or duty" are deemed privileged.

The Fourth Circuit Court of Appeals recently considered--and rejected--the defamation claims of Claudine Nigro, a former medical resident at the Shenandoah Valley Family Residency Program. After a semiannual performance review in 2009, Nigro was notified that she would not be renewed for another year of residency with the program. measuring_tape.jpg Nigro appealed this decision, but then resigned a few months later. She brought an action against the residency program's director and the hospital itself, claiming that she was defamed during the appeals process by the director of the program, who discussed her perceived shortcomings with the faculty appeals committee, and by employees of the hospital, who reported Nigro for allegedly recording her conversations with physicians.

Nigro alleged the Program Director defamed her with statements he made in various meetings and notices, including "There has been no evidence of improvement or intention to improve in weak areas," "There is no change in apathetic/disinterested approach or demonstrated interest in learning despite 3-4 months of discussion and coaching," and "There is faculty consensus that [Nigro] may be suffering from depression or poor career choice." The court found that all the alleged statements were either opinion, factually true, not defamatory, or were protected by the qualified privilege applicable to statements made to another with a corresponding interest or duty.

One alleged statement was that Nigro had "failed NICU." The Court acknowledged that the statement was technically false, but opined that the statement lacked sufficient sting to be defamatory. Not all false statements about a person will support a defamation action. The words must be sufficient harmful in that they would tend to deter third persons from associating or dealing with the subject of the statement. The court found that a false allegation that Nigro failed the Neonatal Intensive Care Unit was "not sufficiently harmful" to be defamatory.


Breach of Non-Disparagement Agreement Leads to Defamation Claim

June 29, 2012,

The United States District Court for the Western District of Virginia has found that negative comments a customer service representative made to a customer may form the basis of a defamation action.

Charles and Donna Bates operate a school photography business. They entered a contract with Strawbridge Studios, Inc., also a school photography business, under which Strawbridge purchased the Bates' accounts and employed them to handle certain accounts. The relationship deteriorated and ended in the Bates filing a breach of contract action again Strawbridge. The parties resolved their dispute and entered a settlement agreement which included a non-disparagement clause providing that neither party would "say, write, publish, broadcast, or in any other way participate in negative or disparaging comments about the other."

Later, when a customer called Strawbridge looking for a photograph she believed the Bates had taken, Strawbridge's customer service representative told the customer that the Bates were "not reputable" and "could not be trusted." The representative also stated that "things got so bad" that Strawbridge "had to get involved in a lawsuit." The Bates filed a second suit against Strawbridge and included a claim for defamation.

Strawbridge moved for summary judgment on the defamation claim, arguing that (1) the Bates failed to prove that the customer service representative made the alleged statements, (2) the Bates failed to produce evidence that the statements were false, (3) the statements were expressions of opinion, and (4) a qualified privilege protects the statements.

The court rejected all of Strawbridge's arguments, first finding that the Bates' customer declaration describing the customer services representative's negative comments was sufficient evidence to establish that the allegedly defamatory statements were made. The court then noted that the issue of whether a plaintiff has sufficiently proven the falsity of allegedly defamatory statements is a question to be decided by a jury. Strawbridge submittedstudio light.jpg third party declarations stating that the Bates were not trustworthy and did not have a good reputation, and the Bates proffered declarations from individuals that cast them in a positive light. Given this evidence, the court found that reasonable minds could differ on the issue of truth or falsity and therefore the issue must go to the jury.

Whether an allegedly defamatory statement is fact or opinion, however, is a question of law to be determined by the court. The court noted that in making such a judgment, it must consider the statement as a whole. The court found that the statements could be reasonably understood to imply the existence of defamatory facts given the context in which they were made and the fact that the customer service representative referred to the lawsuit between the parties. Therefore, the court was unable to conclude as a matter of law that the statements at issue were pure expressions of opinion.

Finally, the court rejected Strawbridge's qualified privilege argument. A communication made in good faith on a subject matter in which the person communicating has an interest or owes a duty is qualifiedly privileged if made to a person having a corresponding interest or duty. For the privilege to apply, Strawbridge must show that its representative and the customer had corresponding duties or interests in the subject matter. Here, Strawbridge failed to show that the customer had any interest in learning about Strawbridge's failed business relationship with the Bates. In fact, the customer stated in her declaration that she "had no interest in hearing these backbiting comments."

Virginia Law Firm's Defamation Claim Dismissed As Opinion

June 11, 2012,

When several law firm clients were vocally unhappy about the firm's work product and billing practices, and expressed their views to a Virginia legal newspaper, the firm slapped them with a defamation suit in Richmond federal court. However, finding the allegedly defamatory statements to be subjective statements of opinion, the court dismissed the claim.

The Virginia law firm of Cook, Heyward, Lee, Hopper & Feehan, P.C. ("Cook Heyward") entered into a contract for legal services with Trump Virginia Acquisitions LLC, Trump Vineyard Estates, LLC, and The Trump Organization, Inc. Cook Heyward provided the Trump Entities with invoices itemizing fees and costs over the course of the representation. The Trump Entities requested Cook Heyward to reformat the invoice but did not object to the amount billed, and they continued to request legal services from Cook Heyward.

After a second updated invoice, the Trump Entities indicated that they had no problem with the quality of the legal work, but thought the bills were "too high" and suggested Cook Heyward reduce its fees by approximately seventy percent. Cook Heyward informed the Trump Entities that they intended to file a motion to withdraw as counsel. trump.jpgThe Trump Entities asked Cook Heyward to reconsider, then informed them that they "should expect very bad publicity" regarding their withdrawal as counsel. After repeated requests for payment, Cook Heyward filed a motion to withdraw which the court granted.

The Trump Entities' General Counsel gave an interview to Virginia Lawyers' Weekly in which he stated that the Trump Entities were "very, very disappointed" in Cook Heyward's work quality and billing practices. He also claimed that he had to redo Cook Heyward's work multiple times. Cook Heyward filed a suit against the Trump Entities which included a count for defamation per se. The Trump Entities moved to dismiss the defamation claim.

In Virginia, a plaintiff claiming defamation must prove that the defendant published an actionable statement with the requisite intent. An actionable statement is one that is false and harms the plaintiff's reputation. If the statements are objectively true or are protected expressions of opinion, there is no actionable defamation. Words which injure a person in his profession or trade are actionable as defamation per se, meaning that the plaintiff need not show harm to reputation.

Cook Heyward argued that the Trump Entities published false, factual statements which prejudiced them in their legal profession, thus constituting defamation per se. The Trump Entities responded that the statements at issue were statements of pure opinion protected by the First Amendment.

In determining whether the statements were fact or opinion, the court first examined whether the language the Trump Entities used was "loose, figurative or hyperbolic"-- traits that would suggest the statement was not one that could reasonably be interpreted as one intended to convey actual facts. The court also considered the context and general tenor of the Virginia Lawyers' Weekly article, noting that a statement expressing a subjective view rather than an objectively verifiable fact does not constitute defamation, and that pure expressions of opinion and rhetorical hyperbole are constitutionally protected because they cannot be objectively characterized as true or false.

Based on the tenor, language, and context of the article, the court found that the statement that the Trump Entities were "very, very disappointed" in Cook Heyward's work quality and billing practices was a subjective expression of opinion. The court noted that statements of unsatisfactory job performance generally do not rise to the level of defamation and that the concept of being "disappointed" is a relative one, contingent on the speaker's internal viewpoint.

The court also found that the Trump Entities' statement that they needed to redo Cook Heyward's work represented a relative concept requiring the exercise of discretion and individualized judgment. The alleged necessity of redoing the work depended on the Trump Entities own evaluation and assessment. Finding both statements to be protected expressions of opinion and not actionable as defamation, the court dismissed Cook Heyward's defamation claim.

Defamation Claims Asserted by Church Against Former Members

May 17, 2012,

Julie Anne Smith and her family attended Beaverton Grace Bible Church for over two years. When the church dismissed one of its employees for "subversive conduct," the Smith family sought meetings with the Pastor and Elders to discuss the situation because they felt the termination was handled poorly. During the meetings, the Smiths and church officials discussed church policies and governance. Later, an elder informed Mrs. Smith that she must "recant" or her entire family would no longer be welcome at the church. The Smiths stopped attending the church.

Mrs. Smith later learned that Oregon authorities were investigating allegations of child molestation by a teenage member of the church whom she had seen in the child care area. The Pastor and Elders came unannounced to the Smith home demanding to know whether the Smiths knew who had reported the abuse. The Pastor informed the Smiths that they were "excommunicated."

Mrs. Smith began posting comments about the church under Google's "reviews" of the church. Congregants, former congregants, and the Pastor also posted comments, and the dialogue about church governance and doctrine continued. The Pastor removed many postings, so Mrs. Smith began her own blog, Beaverton Grace Bible Church Survivors, where she continued making and encouraging comments.

Shortly thereafter, the church and its Pastor filed a defamation complaint against Mrs. Smith and her daughter based on statements they posted online. The allegedly defamatory comments included statements that the Pastor misled the congregation and used "control tactics," that the church was not a healthy or safe place, was destructive and disturbing, and that it had a spiritually abusive environment. Mrs. Smith wrote that there is something "creepy "about the church, and she claimed that the church turned a blind eye to known sex offenders. She stated that the Pastor's "extra-biblical legalistic teaching" was wrong and that he was a liar. Mrs. Smith's daughter posted a Google review stating that the Pastor micro-managed things and bullied people and that one could not find grace at the church.

The Smiths responded with a Special Motion to Strike under Oregon's anti-SLAPP statute which allows a defendant to move to strike a claim that "arises out of" a statement made in a public forum in connection with an issue of public interest. If a defendant shows that the claim indeed "arises out of" such a statement, the plaintiff must present substantial evidence that the claim will prevail.

The anti-SLAPP statute should apply, in my view, because the Internet is a "public forum" and the statements concern matters of public interest. Various segments of the population have an interest in the statements at issue, including members of churches all over the world, people concerned with questions of personal salvation, radio listeners who hear the Pastor's sermons broadcast in the greater Portland area, persons who are the focus of the Church's evangelism, and those debating the impact of "spiritual abuse."

The church may end up having to pay the Smiths' attorneys' fees, because it's unlikely it will be able to demonstrate a likelihood of success on the merits. The statements at issue concern matters of opinion, which are not actionable. Moreover, the statements involve matters of church practices and personal religious conviction, which are protected by the "church autonomy doctrine." Finally, even if the court determines that a statement could be considered defamatory, the court will most likely find the church to be a "public figure," which would mean it could not recover absent a showing of malicious intent. Expect to see the SLAPP act put into action out in Oregon.


Lawyer's Tortious Interference Claim Against Former Lovers Dismissed

February 27, 2012,

A federal judge in the Southern District of New York has dismissed a claim by a lawyer who claims that his ex-lovers tortiously interfered with his prospective business relationships by posting allegedly defamatory material on the Internet. In Matthew Couloute, Jr. v. Amanda Ryncarz and Stacey Blitsch, the judge held that the lawyer failed to state a claim upon which relief could be granted and denied his motion for leave to amend.

Couloute had previously dated both Ryncarz and Blitsch. After the relationships ended, Ryncarz and Blitsch posted comments on an Internet site, www.liarscheatersrus.com, painting Couloute in an unfavorable light. Both women expressed their views that Couloute was a liar and a cheater, that he was manipulative and that he used the people in his life to get what he wanted. Couloute sued them both, arguing that these statements were defamatory and that they caused him damage by interfering with his law practice in New York. He claimed that the woman made the statements with the specific purpose of causing him financial trouble. The court disagreed.

Applying New York law (which closely parallels Virginia law in this area), the court said that the plaintiff's complaint could not stand because it did not contain all of the elements for a claim of tortious interference with prospective business relations. To state a proper claim, the plaintiff would have to allege: "(1) business relations with a third party; (2) the defendant's interference with those business relations; (3) the defendant acted with the sole purpose of harming the plaintiff or used dishonest, unfair, or improper means; and (4) injury to the business relationship." In this case, Couloute failed to allege a specific business relationship with which the defendants interfered.

The court also denied Couloute's request to add a count for defamation, reasoning that the defendants' statements amounted to opinions and nothing more. "Loose, figurative or hyperbolic statements, even if deprecating the plaintiff, are not actionable," the court wrote.

Defamation Lawsuit Exposes Redskins Owner to Ridicule

February 4, 2011,

It doesn't take a defamation expert to see the flaws in the $2 million libel lawsuit filed this week by Redskins owner Dan Snyder against the Washington City Paper. Mr. Snyder took offense at an article titled, "The Cranky Redskins Fan's Guide to Dan Snyder: From A to Z (for Zorn), an Encyclopedia of the Owner's Many Failings," which contains a detailed list of reasons the author considered him a bad owner. Mr. Snyder also disapproved of an image of him, published with the article in question, on which someone had doodled devil horns and a mustache, which Mr. Snyder deemed "an anti-Semitic caricature of himself" which "forced" him to file the lawsuit. Talk about thin skin.

First of all, how ironic is it that Mr. Snyder claims he was forced to bring this lawsuit to protect his reputation and good name, and yet by virtue of suing the newspaper, he has stoked the interest of the media and triggered widespread public scrutiny into his prior activities, vastly increasing the number of people who will seek out and read The Cranky Redskins Fan's Guide to Dan Snyder? Personally, I'm not a regular reader of the Washington City Paper and would never have known about the alleged defamatory statements had Mr. Snyder not called my attention to them by suing the paper. Mr. Snyder and his lawyers have alerted the otherwise complacent populace to a long list of alleged bad acts by the Redskins owner. Even if he wins the case, will he really have done himself and his reputation any favors by suing an outspoken critic?

But he won't win. As I explained in an earlier blog post, not just any hurtful or offensive comment will constitute libel or slander upon which a plaintiff could DevilDoodle.jpgsuccessfully sue for millions of dollars. Defamation liability requires the publication of a false factual statement that concerns and harms the plaintiff or the plaintiff's reputation. Statements of opinion, regardless of how unfavorable the opinion, are not actionable. Thus, calling Mr. Snyder a failure, likening him to the devil, and referring to the "stain" he supposedly left on the Redskins are all constitutionally protected as free speech.

Snyder's lawyers are well aware of that restriction, and therefore focus their allegations on certain statements in the article that could be more easily interpreted as factual allegations. Namely, that "Dan Snyder...got caught forging names as a telemarketer with Snyder Communications;" that he caused Agent Orange to be used to destroy trees "protected by the National Park Service" on "federally protected lands;" that Mr. Snyder bragged that his wealth came from diabetes and cancer victims; and that Mr. Snyder was "tossed off' the Six Flags' board of directors. According to Huffington Post reporter Jason Linkins, these allegations are all demonstrably true or were intended as metaphors with substantial truth to them. If the statements are true, they are not defamatory.

Mr. Snyder has an even higher hurdle to climb if we wants to recover damages against the Washington City Paper: as a widely known public figure, Mr. Snyder will need to prove not only that the article contained false statements, but that the Washington City Paper acted with "constitutional malice": that it knew the statements were false or published the statements with reckless disregard of whether the statements were true or false.

If he fails to prove, with clear and convincing evidence, that the newspaper published false factual statements (not just opinions) about him, and that they did so with malice, he will lose the case. And while losing the case would not necessarily mean that the statements about Mr. Snyder's alleged activities are true, what will public perception be?